Three-judge panel will hear arguments on Virginia case that has echoes of interracial marriage ruling

Appeals panel is second in the nation to hear same-sex marriage issue; expected to head to Supreme Court

18 states and the District of Columbia allow gay marriage but issue is in many federal and state courts

The battle over same-sex marriage in Virginia moved to the appellate level on Tuesday, a significant step for two reasons, one practical and one historical.

It was a Virginia case that led to a 1967 landmark ruling by the U.S. Supreme Court that struck down laws prohibiting interracial marriage -- an argument that has returned during the current campaign to eliminate state laws barring same-sex marriage. Tuesday’s argument before a three-judge federal panel will also be the latest of the gay marriage cases to move up the judicial scale, a needed step before the issue likely heads to the U.S. Supreme Court.

Timothy Bostic and Tony London were denied a marriage license at Norfolk Circuit Court on July 1, 2013 and they promptly sued, arguing that gays and lesbians are being denied equal protection and rights guaranteed by the 14th Amendment because of the state’s constitutional ban on gay marriage. It was on Feb. 13, just in time for Valentine's Day, that a federal judge in Norfolk struck down the state constitutional amendment approved by voters in 2006.

In her ruling, U.S. District Judge Arenda L. Wright Allen compared the ban on same-sex marriage to Virginia’s past prohibition to interracial marriage. It was that case that led the Supreme Court to end bans on interracial marriage across the country. Advocates are hoping the same argument will lead to the same result on same-sex marriage issues.

London and Bostic are represented by attorneys David Boies and Theodore Olson, former adversaries in the 2000 Supreme Court case, Bush vs. Gore, which led to George W. Bush being elected president. Boies served as counsel for Vice President Albert Gore. Olson represented Bush and later served as his solicitor general.

In their papers, the lawyers argue that Virginia’s gay marriage ban improperly discriminates against people on the basis of their sexual orientation.

@J.J. Jerome - each situation you described, homosexuality, incest, polygamy, has different consequences and must be analyzed separately, as to its personal and social benefits and harms. Your argument states that ABSOLUTE freedom is the basis for allowing gay marriage and that ABSOLUTE freedom...

“The Supreme Court has reaffirmed at least 14 times that the right to marry is one of the most fundamental rights -- if not the most fundamental right of an individual,” they said. “The right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice,” they said.

Proponents of upholding Virginia’s constitutional ban, like Norfolk Circuit Court Clerk George Schaefer, a defendant in the case, argue that federal courts should defer to the states on the issue.

“References to marriage being only between a bride and groom, i.e. a husband and wife or one man and one woman, pre-date the Commonwealth of Virginia,” the defense said in its papers. The 2006 action “did not redefine marriage; it memorialized existing laws,” according to Schaefer’s filing, which also argued that “great weight” should be given to the will of the people.

“Americans have come a long way in supporting the freedom to marry, with a majority for marriage nationwide,” Evan Wolfson, president of Freedom to Marry, which supports same-sex marriage, stated on Tuesday. “So have the courts -- with 11 out of 11 federal judges and numerous state courts from New Mexico to Arkansas all ruling in recent months against marriage discrimination.”

The three judges of the U.S. Court of Appeals for the 4th Circuit were named Tuesday morning, just before arguments were set to begin. They are: Paul V. Niemeyer, nominated to the court in 1990 by President George H.W. Bush; Roger L. Gregory, a recess appointment by President Clinton in 2000 who was subsequently nominated by President George W. Bush; and Henry F. Floyd, nominated as a district judge by George W. Bush in 2003 and named to the appeals court by President Obama in 2011.

The 4th Circuit, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina, is the second appeals court to consider whether state bans on same-sex marriage are unconstitutional. The U.S. Court of Appeals for the 10th Circuit in Denver has already heard arguments about the issue in cases stemming from Utah and Oklahoma. A ruling is pending.

The U.S. Supreme Court last summer struck down part of the Defense of Marriage Act, which opened the gates to a variety of lawsuits on issues around same-sex marriage. Federal judges have used the court’s reasoning in the DOMA case to strike down bans in Utah, Oklahoma, Virginia, Texas and Michigan. Additionally, judges in Kentucky, Tennessee and Ohio have said those states must recognize gay marriages performed elsewhere.

Often, the Supreme Court will wait to see how the issue is playing out in the lower courts before deciding to weigh in, a process that many people believe is underway.

Eighteen states and the District of Columbia allow gay marriage. In Arkansas on Monday, more than 200 gay couples obtained marriage licenses following a judge's decision on Friday to toss out the state's 10-year-old same-sex marriage ban.

Arkansas is seeking a stay on same-sex marriages and that issue is pending before the state’s Supreme Court.